The Chennai bench of the Customs, Excise & Service Tax Appellate Tribunal(CESTAT) Customs Exemption Benefit on Wind Operated Electricity Generator not allowable in absence of Certificate from Ministry of New and Renewable Energy (M.N.R.E).
M/s.Gamesa Wind Turbines P. Limited, the respondent imported parts of Wind Operated Electricity Generators vide various Bills of Entry. As per Notification No.21/2012-Cus. dt. 17.3.2012 as amended by Notification No.21/2014-Cus. dated 11.07.2014, the respondent would be eligible for the benefit of exemption, if they produce a certificate at the time of import from the Ministry of New and Renewable Energy (M.N.R.E).
The respondent did not produce the requisite certificate at the time of import and later based on an Office Memo issued by the M.N.R.E, they filed a refund claim for the refund of the Special Additional Duty (S.A.D) paid by them. The said refund claim was rejected by the original authority stating that the refund claim cannot be allowed as the respondent has not challenged the assessment.
On appeal, the Commissioner (Appeals) held that the respondent is eligible for the benefit of Notification No.21/2012 as they have produced the required certificate from M.N.R.E. The original authority’s assessment order was set aside and the matter was remanded to the Assessment Group to recall and reassess the Bill of Entry extending the benefit of Notification No.21/2012 as amended by Notification No.21/2014Cus.
The department argued that the condition in Notification No.21/2012-Cus. as amended by Notification No.21/2014-Cus., is that the importer has to furnish a certificate at the time of import. The respondent has not produced the certificate at all and they have produced only an office memorandum issued by the M.N.R.E. The said document cannot be accepted as a certificate required to be produced as per the notification. It was argued that the Commissioner (Appeals) ought not to have remanded the matter to reassess the bills of entry as the respondent had not produced the certificate at the time of import.
The respondent submitted that they could not obtain the certificate as required by the said notification at the time of import. They had obtained an office memorandum regarding the certificate as it may be treated as on par with the certificate as required under Notification No.21/2012-cus as amended.
A two-member bench of Sulekha Beevi C S Member (Judicial) and Vasa Seshagiri Rao, Member (Technical) observed that one of the conditions for availing the benefit of the exemption from S.A.D at the time of import of the impugned goods is that the importer has to produce a certificate from the Ministry of New and Renewable Energy, Govt. of India.
The respondent has not furnished the certificate while filing the Bills of Entry. There is nothing stated in the notification that the said condition can be condoned even if the respondent does not have the required certificate and has furnished only an office memorandum issued by the M.N.R.E.
The CESTAT held that the order passed by the Commissioner (Appeals) was not legal and proper. Further held that the direction to remand the matter to recall and reassess the bills of entry cannot therefore sustained. The Tribunal set aside the impugned order and restored the order passed by the original authority.
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